Federal Court Rejects Copycat Class Action

 A California federal court declined to certify a putative class of consumers in a suit accusing defendant of marketing defective dryers. See  Martin Murray v. Sears Roebuck and Co. et al., No. 4:09-cv-05744 (N.D. Cal.).

In 2009, Murray filed a putative class action on behalf of all California consumers who purchased the same Kenmore-brand dryer that he allegedly did. In his complaint, he alleged that Sears and Electrolux, the dryer’s manufacturer, had marketed the dryer to consumers by promoting its “stainless steel” drum without disclosing that the drum’s front -- the portion of the drum that allegedly rusted -- was actually made of a mild steel, which is allegedly more susceptible to corrosion and chipping. Based on this alleged omission, Murray asserted claims against defendants for unjust enrichment, breach of contract, and violations of California’s Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL). Defendants removed the action to federal court under the Class Action Fairness Act.

The original complaint was a "copycat" of allegations in a class action in the 7th Circuit, the infamous Thorogood matter. After amendment, the court concluded that the new allegations were sufficiently different from those in Thorogood, such that plaintiff was not collaterally estopped from
asserting his claims on a class-wide basis.

Plaintiffs sought certification under Rule 23 subsections (b)(2) and (b)(3). Rule 23(b)(2) applies where the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.  Rule 23(b)(3) permits certification where common questions of
law and fact predominate over any questions affecting only individual members, and class resolution is superior to other available methods for the fair and efficient adjudication of the
controversy. In deciding the class issue, the court must conduct a rigorous analysis, which may require it to probe behind the pleadings before coming to rest on the certification question. Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).  Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. "That cannot be helped.” Dukes, 131 S. Ct. at  2551.

The court's analysis focused on the commonality and typicality requirements of Rule 23(a). The court concluded that Murray failed to present any evidence that defendants represented on a class-wide basis that the dryer’s drum front was made of stainless steel (rather than mild steel) and that this feature would prevent its user’s clothes from developing rust stains or tears. None of the sales managers testified that Sears marketed the drums as preventing rust stains or tearing. One
product manager testified that she believed the stainless steel was marketed as an aesthetic feature. A third Sears employee simply referred Murray to Sears’s marketing team when asked about the company’s advertising practices. None of this testimony supported Murray’s claim that California consumers, as a class, were likely to be confused by Sears’s marketing claims.

While some of Sears’s promotional materials stated that the Kenmore-brand dryers feature an “exclusive, all stainless-steel drum that provides lasting durability,” this, said the court, hardly qualified as a material misrepresentation.  And Murray’s account of his personal experience at a single Sears store did not suggest that Sears made any representation about the Kenmore-brand dryers on a class-wide basis. Nor did it suggest that Sears ever made such a representation about the Frigidaire-brand dryers nor that Electrolux ever made similar  representations about either brand of dryers. If anything, his individual isolated (and uncorroborated) incident of allegedly deceptive marketing suggests that Murray’s claims, were highly “idiosyncratic” and, thus, not amenable to class-wide proof.  In addition, Murray’s failure to identify any other class  member whose clothes were stained by rust only reaffirmed that his claimed injury here was unique. He also had not offered any evidence to suggest that other California consumers’ clothes were ever damaged by Kenmore or Frigidaire dryers. 

Accordingly, because he had not identified any common questions of fact or law that pertain to every class member, Murray failed to meet the commonality prerequisite.

Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. Murray failed to satisfy the typicality requirement here for the same reasons he failed to satisfy the commonality requirement: specifically, he had not presented evidence of any class-wide misrepresentations or class-wide injury. As explained above, the only evidence here that defendants ever specifically represented that their dryers’ stainless steel drums protect clothes from rust stains came from Murray’s own isolated experience at one Sears store. Murray did not present any evidence to suggest that either defendant ever made the same
representations to other California consumers. Nor did he present any evidence to suggest that other California consumers suffered the same problems,

Also, he testified that the loose drum was most likely what caused his clothes to become exposed to the rust in the first place because the rust had only developed on the exterior portion of the drum front -- a part of the dryer that would not normally come into contact with any clothes. This admission -- that other problems with Murray’s dryer may have contributed to the rust stains he experienced -- left the named plaintiff vulnerable to fact-based defenses that could not be raised against other class members.  Similarly, because Murray purchased his dryer in September 2001, and did not file until November 2009, the potential statute of limitations issue made his claim not typical (as well as affecting adequacy). 

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